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48:5 William and Mary Law Review 1831 (April 2007).

Abstract

Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical conception of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert can transcend community, situation, and time to give a conception of justice that can be relied upon to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than can deontological desert because, contrary to common wisdom, there is a good deal of agreement as to its meaning. But empirical desert fails to provide the transcendent foundation that deontological desert can provide; empirical desert can tell only us what people believe is just not what actually is just.

What role do moral philosophers play in the competition between deontological and empirical desert? One might assume them to be on the deontological side, facing the research social psychologists who are mapping shared intuitions of justice for empirical desert. But the situation is more complex. Moral philosophy has come to rely heavily upon intuitions of justice in its analytic methods, which both helps and hurts its usefulness. The moral philosophy literature today is the richest available source of intuitions of justice, which any serious research scientist ought to use as a starting point in mapping intuitions. But moral philosophers' reliance on intuitions can undermine their ability to produce a deontological conception of desert that transcends the popular view and that can be relied upon to tell us when shared intuitions of justice are wrong.